Civil Procedure - Session 3

CIVIL PROCEDURE - Session 3
[G.R. No. 144074. March 20, 2001] not discuss the merits of the petition. Hence, the petition raising the
MEDINA INVESTIGATION & SECURITY CORPORATION and following grounds:
ERNESTO Z. MEDINA, petitioners, vs. COURT OF APPEALS,
NATIONAL LABOR RELATIONS COMMISSION and ROMEO THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE PETITION
TABURNAL, respondents. FOR CERTIORARI WAS FILED BEYOND THE REGLEMENTARY PERIOD.
PUBLIC APPELLEES COMMITTED A REVERSIBLE ERROR WHEN THEY
RESOLUTION DISMISSED THE PETITION, THEREBY AFFIRMING THE DECISION OF
GONZAGA-REYES, J.: LABOR ARBITER FELIPE P. PATI WHICH AWARDED MONETARY CLAIMS
AND OTHER RELIEF NOT PRAYED FOR IN THE COMPLAINT, IN GRAVE
Before this Court is a Petition for Review seeking to set aside the ABUSE OF THEIR DISCRETION, AMOUNTING TO LACK OR EXCESS OF
Resolution dated June 2, 2000 dismissing the petition for being filed JURISDICTION.
beyond the 60-day reglementary period and the Resolution dated July
12, 2000 denying the motion for reconsideration, both issued by the PUBLIC APPELLEES GROSSLY ERRED AND GRAVELY ABUSED THEIR
Court of Appeals in CA-G.R. SP No. 58968. DISCRETION, WHEN THEY HELD APPELLANT ERNESTO Z. MEDINA
JOINTLY AND SEVERALLY LIABLE WITH APPELLANT MISCOR, INSPITE
Respondent Romeo Taburnal was hired by petitioner corporation as OF THE FACT THAT THERE IS NO EVIDENCE TO THAT EFFECT.
security guard on September 8, 1996 and was assigned to one of its
clients, Abenson, Inc. at Sta. Lucia Grand Mall.On September 5, 1997, Petitioners main contention is that their petition for certiorari filed with
the client requested that respondent Taburnal be relieved due to the Court of Appeals was within the 60-day reglementary period
violations pursuant to the Service Contract such as reporting late for pursuant to Rule 65. They insist that when the assailed Order was
duty, below standard performance of duties, and exceeding the received on April 3, 2000, the petition filed on May 31, 2000 was the
maximum six (6) months duty in the company. In view of his 58th day, citing Section 1, Rule 22 of the 1997 Rules on Civil
replacement, respondent Taburnal filed a complaint for Illegal Procedure and Article 13 of the Civil Code.
Dismissal claiming for separation pay, non-payment of legal/special
holiday and overtime pay, underpayment of 13th month pay and cash In his Comment, private respondent Romeo Taburnal alleges that he is
bond and tax refund. On April 29, 1999, the Labor Arbiter rendered aware that Section 4, Rule 65 of the 1997 Rules on Civil Procedure
judgment ordering the reinstatement of respondent Taburnal without was later amended, which amendment took effect on September 1,
loss of seniority rights and the payment of full backwages and salary 2000. He insists however that the petition filed with the Court of
differentials. Petitioners appealed to the NLRC which dismissed the Appeals was not yet covered by said amendment. Private respondent
same for lack of jurisdiction. The Motion for Reconsideration thereto further avers that Article 223 of the Labor Code and the NLRC Rules of
was denied. Herein petitioners filed a petition for certiorari with the Procedure provide that appeal is the proper remedy for a party
Court of Appeals which dismissed the petition outright for having been aggrieved by a decision of the Labor Arbiter and the filing of a petition
filed beyond the 60-day reglementary period or on the 67th day per for certiorari with the NLRC by petitioners is definitely a wrong
its Resolution on June 2, 2000. The Court of Appeals ruled that the remedy.
petition was filed on the sixty-seventh (67th) day since petitioners
received on November 10, 1999 the Order dated August 26, 1999 of A.M. No. 00-2-03-SC amending Section 4, Rule 65 of the 1997 Rules
the NLRC and the Motion for Reconsideration thereto was filed of of Civil Procedure (as amended by the Resolution of July 21, 1998)
November 19, 1999. Copy of the order denying the said motion was took effect on September 1, 2000 and provides, to wit:
received by petitioners on April 3, 2000, while the petition was filed
with the Court of Appeals on May 31, 2000. The Court of Appeals did SEC. 4. When and where petition filed. --- The petition shall be filed
AL Ilagan-Malipol, AB, MD 1
not later than sixty (60) days from notice of the judgment, order or The above conclusion is consonant with the provision in Section 6,
resolution. In case a motion for reconsideration or new trial is timely Rule 1 of the 1997 Rules of Civil Procedure that (T)hese Rules shall be
filed, whether such motion is required or not, the sixty (60) day period liberally construed in order to promote their objective of securing a
shall be counted from notice of the denial of said motion. just, speedy and inexpensive disposition of every action and
proceeding.
The petition shall be filed in the Supreme Court or, if it relates to the The other issues raised by petitioners should be addressed and
acts or omissions of a lower court or of a corporation, board, officer or resolved by the court below.
person, in the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed WHEREFORE, the Resolutions dated June 2, 2000 and July 12, 2000
in the Court of Appeals whether or not the same is in aid of its are hereby SET ASIDE and the case is REMANDED to the Court of
appellate jurisdiction, or in the Sandiganbayan if it is in aid of its Appeals for further proceedings.
appellate jurisdiction. If it involves the acts or omissions of a quasi- SO ORDERED.
judicial agency, unless otherwise provided by law or these rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for

compelling reason and in no case exceeding fifteen (15) days.
Contrary to the position of respondents that such amendment should

not apply in this case, we have ruled in the cases of Systems Factors
Corporation and Modesto Dean vs. NLRC, et al., G.R. No. 143789
(promulgated on November 27, 2000) and Unity Fishing Development
Corp. and/or Antonio Dee vs. CA, et al., G.R. No. 145415
(promulgated on February 2, 2001) that the amendment under A.M.
No. 00-2-03-SC wherein the sixty-day period to file a petition
for certiorari is reckoned from receipt of the resolution denying the
motion for reconsideration should be deemed applicable. We reiterate
that remedial statutes or statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but
only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a
retroactive law, or the general rule against retroactive operation of
statutes.[1] Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the
time of their passage. Procedural laws are retroactive in that sense
and to that extent. The retroactive application of procedural laws is
not violative of any right of a person who may feel that he is adversely
affected.[2] The reason is that as a general rule, no vested right may
attach to nor arise from procedural laws.[3]
[G.R. No. 149692. July 30, 2002] subject land was not attached to the complaint; that respondents
HEIRS OF SPOUSES JULIAN DELA CRUZ AND MAGDALENA predecessors merely tolerated petitioners possession of the subject
TUAZON, represented by their Attorney-in-Fact and co-heir, land; that petitioners never filed their opposition to respondents
VIRGILIO C. ALVENDIA, petitioners, vs. HEIRS OF FLORENTINO application for registration despite knowledge thereof; that the land
QUINTOS, SR., namely, FLORENTINO QUINTOS, JR. and registration case which was the basis for the issuance of OCT No.
GLORIA QUINTOS BUGAYONG, respondents. 22665 in the name of the predecessor of respondents was a
proceeding in rem which bound all persons whether notified or not.
Before Us is a petition for review on certiorari under Rule 45 filed
by petitioners seeking to reverse and set aside the Resolution dated On January 29, 1999, a decision[4] was rendered by the MTC
May 29, 2001 of the Court of Appeals[1] which dismissed their petition declaring petitioners as the legal owners of the land covered by TCT
for review of the decision of the Regional Trial Court of Lingayen, No. 173052 and ordering respondents to convey to petitioners the
Pangasinan (Branch 38) on the ground that the petition was filed out subject land and to pay damages to petitioners. [5]
of time; and, the Resolution dated August 29, 2001[2] denying
Respondents filed their appeal before the Regional Trial Court,
their motion for reconsideration.
Lingayen, Pangasinan (Branch 38). On January 19, 2000, the
Sometime in 1996, petitioners filed with the Municipal Trial Court RTC[6] reversed the decision of the MTC dismissing the complaint,
of Lingayen, Pangasinan an action for reconveyance with declaring respondents as the absolute owners of the subject land and
damages[3] against respondents alleging,among others, that they are ordering petitioners to pay damages to respondents.
the children of the late Ariston dela Cruz, who was the only forced and
Petitioners filed their motion for reconsideration which the trial
legal heir of his deceased parents, Julian dela Cruz and Magdalena
court denied in a Resolution dated March 8, 2000.[7]
Tuazon who died intestate; that sometime in 1897, Magdalena Tuazon
purchased from Herminigildo and Filomena Tiong a certain parcel of On April 18, 2000, petitioners, through counsel, filed with the
land located at Heroes Street, Lingayen, Pangasinan consisting of 605 Court of Appeals (CA) a motion for extension of time to file a petition
square meters and since then respondents and their predecessors had for review which she subsequently filed on May 2, 2000. Respondents
been in continuous occupation and adverse possession of the filed a motion to dismiss the petition for review for being filed out of
subject land; that sometime in 1987, private respondents predecessor time since the certification issued by Postmaster Elizabeth I. Torio of
Florentino Quintos, Sr., filed an application for the judicial registration Dagupan City Post Office and the affidavit of Ricardo C. Castro, Clerk
of a certain land which included petitioners land; that the land III of the Regional Trial Court show that the trial courts Resolution
registration court granted Quintos application and decreed the land in dated March 8, 2000 denying petitioners motion for reconsideration
Florentino Quintos name and OCT No. 22665 was subsequently was received by the secretary of petitioners counsel on March 16,
issued; that OCT No. 22665 was partitioned into four separate lots and 2000, thus the filing of the petition was filed 28 days late.
petitioners land was covered by TCT No. 173052; that respondents
subsequently filed a complaint (docketed as Civil Case No. 4118) for Petitioners counsel filed her Comment to respondents motion to
illegal detainer against petitioners for the latters refusal to vacate the dismiss alleging that when she arrived in her office on April 3, 2000,
subject land which resulted in petitioners ejectment from the subject she found copies of pleadings and correspondence including a copy of
property. the trial courts Resolution dated March 8, 2000 denying her motion for
reconsideration; that she thought that these pleadings and
Respondents filed their answer with counterclaim, alleging that the correspondence were all received on April 3, 2000; that upon receipt
subject land had always belonged to respondents late father Florentino of respondents motion to dismiss, she confronted her secretary who
Quintos, Sr., who in turn inherited the same from his mother, Dolores told her that the envelope containing the Resolution was only opened
Tuazon; that the affidavit evidencing petitioners ownership of the
on April 3, 2000 and her secretary could not recall if the resolution denying petitioners motion for reconsideration of the trial
Resolution was among those she received on March 16, 2000. courts decision was received by the secretary of petitioners former
counsel on March 16, 2000, thus the last day of the 15-day period
On May 29, 2001, the CA issued the assailed Resolution dismissing
within which to file the petition for review with the respondent court
petitioners petition for review for being filed out of time. It found the
was March 31, 2000. Considering that counsel filed a motion for
explanation given by petitioners counsel unconvincing since she failed
extension of time to file a petition for review with the respondent court
to give the reason why the envelope was opened only on April 3,
only on April 18, 2000, the judgment of the RTC subject of the petition
2000; that counsels secretary did not even admit that she actually
for review had already become final and executory. Consequently, the
received the said Resolution; that it is the counsels duty to adopt and
CA did not err in dismissing the petition for being filed out of time
strictly maintain a system that efficiently takes into account all court
since it has no more jurisdiction to entertain the petition much less to
notices sent to her and she failed to instruct and remind her secretary
alter a judgment.
on what should be done with respect to such notices and processes.
Petitioners motion for reconsideration was denied in a Resolution This Court has invariably ruled that perfection of an appeal in the
dated August 29, 2001. manner and within the period laid down by law is not only mandatory
but also jurisdictional.[10] The failure to perfect an appeal as required
Hence, the present petition on the following grounds:
by the rules has the effect of defeating the right to appeal of a party
1) The appellate court rejected and refused to consider the and precluding the appellate court from acquiring jurisdiction over the
valid reason submitted by the petitioners counsel for the case.[11] The right to appeal is not a natural right nor a part of due
apparent delay in the filing of the petition for review with process; it is merely a statutory privilege, and may be exercised only
said court; hence the dismissal of the petition was tainted in the manner and in accordance with the provisions of the
with grave abuse of discretion; law.[12] The party who seeks to avail of the same must comply with
the requirement of the rules. Failing to do so, the right to appeal is
2) Granting, arguendo, that there is a basis for the dismissal lost. [13]
of the petition, the appellate court should have applied the
principle of liberal construction of the Rules pursuant to We agree with the CA when it found that the reason advanced by
Rule 1, Section 6 of the 1997 Rules of Civil Procedure (1997 petitioners former counsel, which is that she received the resolution
RCP), considering the valid and meritorious case of denying her motion for reconsideration only on April 3, 2000 as she
petitioners. found it on her table on the same date, unacceptable. The negligence
of her secretary in failing to immediately give the trial courts
3) In either case, it is respectfully submitted that the appellate resolution denying petitioners motion for reconsideration upon receipt
court has departed from the accepted and usual course of to the counsel and the negligence of counsel to adopt and arrange
judicial proceedings in dismissing outright the petition for matters in order to ensure that official or judicial communications sent
review as to call for the supervision of this Honorable Court by mail would reach her promptly cannot be considered
in the exercise of its equity jurisdiction.[8] excusable. The Court has also often repeated that the negligence of
We deny the petition. the clerks which adversely affect the cases handled by lawyers, is
binding upon the latter.[14] The doctrinal rule is that the negligence of
Section 1, Rule 42 of the 1997 Rules on Civil Procedure, provides counsel binds the client because otherwise, there would never be an
that the petition shall be filed and served within 15 days from notice of end to a suit so long as new counsel could be employed who could
the decision sought to be reviewed or of the denial of petitioners allege and show that prior counsel had not be sufficiently diligent, or
motion for new trial or reconsideration filed in due time after experienced, or learned.[15]
judgment.[9] In the instant case, it has been established that the
Petitioners claim that there should be a liberal construction of the of Herminigildo and Filomena Tiong executed on November 9, 1926
rules of procedure in order to effect substantial justice and appeal to which stated among others that they were the former owners in
this Courts exercise of equity jurisdiction. We are not common of the subject parcel of land which they sold to Magdalena
persuaded. There is no showing in this case of any extraordinary Tuazon (petitioners predecessor in interest) on or about the year
circumstance which may justify a deviation from the rule on timely 1897. However, such affidavit was not accompanied by any instrument
filing of appeals. As held in the case of Tupas vs. CA:[16] showing the sale between the Tiong spouses and Magdalena
Tuazon. By itself, an affidavit is not a mode of acquiring
Rules of procedure are intended to ensure the orderly administration ownership,[17] thus it cannot serve as the basis of ownership of the
of justice and the protection of substantive rights in judicial and petitioners. Moreover, the RTC found that there was no tax declaration
extrajudicial proceedings. It is a mistake to suppose that substantive or title in the name of the Tiong spouses to evidence their ownership
law and adjective law are contradictory to each other or, has often of the subject land. On the other hand, respondents ownership of the
been suggested, that enforcement of procedural rules should never be subject land was by virtue of a land registration case where the land
permitted if it will result in prejudice to the substantive rights of the registration court found sufficient the well documented evidence
litigants. This is not exactly true; the concept is much misunderstood. submitted by applicant Florentino Quintos, Sr. ( respondents
As a matter of fact, the policy of the courts is to give effect to both predecessor in interest ) to prove their ownership of 2,048 sq. meters
kinds of law, as complementing each other, in the just and speedy lot which included the subject land.
resolution of the dispute between the parties. Observance of both
In civil cases, the burden of proof is on the plaintiff to establish his
substantive and procedural rights is equally guaranteed by due
case by a preponderance of evidence. If he claims a right granted or
process, whatever the source of such rights, be it the Constitution
created by law, he must prove his claim by competent evidence. He
itself or only a statute or a rule of court. (Limpot vs. CA, 170 SCRA
must rely on the strength of his own evidence and not on the
369)
weakness of that of his opponent.[18] The RTC had correctly ruled that
petitioners failed to show sufficient proof of ownership over the
xxx xxx xxx subject land covered by TCT No. 173052 so as to entitle them the
return of the same.
For all its conceded merits, equity is available only in the absence of
law and not as its replacement. Equity is described as justice outside WHEREFORE, the petition is DENIED. The Court of Appeals
legality, which simply means that it cannot supplant although it may, Resolution dated May 29, 2001 and Resolution dated August 29, 2001
as often happens, supplement the law. We said in an earlier case, and are AFFIRMED. Costs against petitioners.
we repeat it now, that all abstract arguments based only on equity SO ORDERED.
should yield to positive rules, which pre-empt and prevail over such
persuasions. Emotional appeals for justice, while they may wring the
heart of the Court, cannot justify disregard of the mandate of the law
as long as it remains in force. The applicable maxim, which goes back
to the ancient days of the Roman jurists- and is now still reverently
observed- is `aequetas nunquam contravenit legis. (Aguila vs. CA,
160 SCRA 359)
At any rate, we find no reversible error committed by the RTC in

dismissing petitioners complaint for reconveyance against
respondents. Petitioners claim of ownership was based on the affidavit
[G.R. No. 155736. March 31, 2005] c. Defendants, jointly and severally, be ordered to pay the plaintiffs:
SPOUSES DANILO and CRISTINA DECENA, petitioners,
i. P10,000.00 monthly, starting 01 October 1997 until complete
vs. SPOUSES PEDRO and VALERIA PIQUERO, respondents.
turnover of the subject property to the plaintiffs, as reasonable
compensation for its continued unlawful use and occupation by the
The petitioners, Spouses Danilo and Cristina Decena were the defendants;
owners of a parcel of land, with a house constructed thereon, located
in Paraaque, Metro Manila (now Paraaque City) covered by Transfer
ii. P200,000.00 moral damages;
Certificate of Title (TCT) No. 134391 issued on February 24, 1998.[1]
On September 7, 1997, the petitioners and the respondents, the iii. P200,000.00 exemplary damages;
Spouses Pedro and Valeria Piquero, executed a Memorandum of
Agreement (MOA)[2] in which the former sold the property to the latter iv. P250,000.00 attorneys fees and litigation related expenses; and
for the price of P940,250.00 payable in six (6)
installments via postdated checks. The vendees forthwith took v. the costs of suit.
possession of the property.
It appears in the MOA that the petitioners obliged themselves to Other reliefs just and equitable are, likewise, prayed for.[4]
transfer the property to the respondents upon the execution of the
MOA with the condition that if two of the postdated checks would be The petitioners declared in their complaint that the property
dishonored by the drawee bank, the latter would be obliged to subject of the complaint was valued at P6,900,000.00. They appended
reconvey the property to the petitioners. copies of the MOA and TCT No. 134391 to their complaint. The case
was eventually raffled to Branch 13 of the RTC of Malolos, Bulacan.
On May 17, 1999, the petitioners, then residents of Malolos,
Bulacan, filed a Complaint[3] against the respondents with the The respondents filed a motion to dismiss the complaint on the
Regional Trial Court (RTC) of Malolos, Bulacan, for the annulment of ground, inter alia, of improper venue and lack of jurisdiction over the
the sale/MOA, recovery of possession and damages. The petitioners property subject matter of the action.
alleged therein that, they did not transfer the property to and in the
On the first ground, the respondents averred that the principal
names of the respondents as vendees because the first two checks
action of the petitioners for the rescission of the MOA, and the
drawn and issued by them in payment for the purchase price of the
recovery of the possession of the property is a real action and not a
property were dishonored by the drawee bank, and were not replaced
personal one; hence, it should have been brought in the RTC of
with cash despite demands therefor.
Paraaque City, where the property subject matter of the action was
The petitioners prayed that, after due proceedings, judgment be located, and not in the RTC of Malolos, Bulacan, where the petitioners
rendered in their favor, thus: resided. The respondents posited that the said court had no
jurisdiction over the property subject matter of the action because it
a. The sale/Memorandum of Agreement (Annex A, supra) be declared was located in Paraaque City.[5]
null and void, rescinded and with no further force and effect; In opposition, the petitioners insisted that their action for
damages and attorneys fees is a personal action and not a real action;
b. Defendants, and all persons claiming right under them, be ordered hence, it may be filed in the RTC of Bulacan where they reside. They
to immediately vacate the subject property and turnover its averred that while their second cause of action for the recovery of the
possession to the plaintiffs; possession of the property is a real action, the same may,
nevertheless, be joined with the rest of their causes of action for in the Regional Trial Court provided one of the causes of action falls
damages, conformably with Section 5(c), Rule 2 of the Rules of within the jurisdiction of said court and the venue lies therein;
Court.[6]
Explaining the aforequoted condition, Justice Jose Y. Feria
By way of reply, the respondents averred that Section 5(c), Rule 2
declared:
of the Rules of Court applies only when one or more of multiple causes
of action falls within the exclusive jurisdiction of the first level courts,
and the other or others are within the exclusive jurisdiction of the (c) Under the third condition, if one cause of action falls within the
RTC, and the venue lies therein. jurisdiction of the Regional Trial Court and the other falls within the
jurisdiction of a Municipal Trial Court, the action should be filed in the
On February 9, 2000, the trial court issued an Order[7] denying Regional Trial Court. If the causes of action have different venues,
the motion for lack of merit. It found merit in the petitioners they may be joined in any of the courts of proper venue. Hence, a real
contention that Section 5(c), Rule 2 was applicable. action and a personal action may be joined either in the Regional Trial
Court of the place where the real property is located or where the
Meanwhile, the case was re-raffled to Branch 10 of the RTC of
parties reside.[10]
Malolos, Bulacan. In a Motion[8] dated December 20, 2000, the
respondents prayed for the reconsideration of the trial courts February
9, 2000 Order. On October 16, 2001, the court issued an A cause of action is an act or omission of one party in violation of
Order[9] granting the motion and ordered the dismissal of the the legal right of the other which causes the latter injury. The essential
complaint. It ruled that the principal action of the petitioners was a elements of a cause of action are the following: (1) the existence of a
real action and should have been filed in the RTC of Paraaque City legal right of the plaintiff; (2) a correlative legal duty of the defendant
where the property subject matter of the complaint was located. to respect ones right; and (3) an act or omission of the defendant in
However, since the case was filed in the RTC of Bulacan where the violation of the plaintiffs right.[11] A cause of action should not be
petitioners reside, which court had no jurisdiction over the subject confused with the remedies or reliefs prayed for. A cause of action is
matter of the action, it must be dismissed. to be found in the facts alleged in the complaint and not in the prayer
for relief. It is the substance and not the form that is controlling. [12] A
Hence, the present recourse. party may have two or more causes of action against another party.
The petition has no merit. A joinder of causes of action is the uniting of two or more
demands or right of action in a complaint. The question of the joinder
The sole issue is whether or not venue was properly laid by the
of causes of action involves in particular cases a preliminary inquiry as
petitioners in the RTC of Malolos, Bulacan. The resolution of this issue
to whether two or more causes of action are alleged.[13] In declaring
is, in turn, anchored on whether Section 5, Rule 2 of the Rules of
whether more than one cause of action is alleged, the main thrust is
Court invoked by the petitioners is applicable in this case.
whether more than one primary right or subject of controversy is
Under the said Rule, a party may, in one pleading, assert, in the present. Other tests are whether recovery on one ground would bar
alternative or otherwise, as many causes of action as he may have recovery on the other, whether the same evidence would support the
against an opposing party subject to the conditions therein other different counts and whether separate actions could be
enumerated, one of which is Section 5(c) which reads: maintained for separate relief;[14] or whether more than one distinct
primary right or subject of controversy is alleged for enforcement or
Sec. 5. Joinder of causes of action. -- adjudication.[15]
(c) Where the causes of action are between the same parties but A cause of action may be single although the plaintiff seeks a
pertain to different venues or jurisdiction, the joinder may be allowed variety of remedies. The mere fact that the plaintiff prays for multiple
reliefs does not indicate that he has stated more than one cause of trial court acted conformably with Section 1(c), Rule 16 of the Rules of
action. The prayer may be an aid in interpreting the petition and in Court when it ordered the dismissal of the complaint.
determining whether or not more than one cause of action is
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
pleaded.[16]If the allegations of the complaint show one primary right
lack of merit. Costs against the petitioners.
and one wrong, only one cause of action is alleged even though other
matters are incidentally involved, and although different acts, SO ORDERED.
methods, elements of injury, items of claims or theories of recovery
are set forth.[17] Where two or more primary rights and wrongs
appear, there is a joinder of causes of action.
After due consideration of the foregoing, we find and so rule that
Section 5(c), Rule 2 of the Rules of Court does not apply. This is so
because the petitioners, as plaintiffs in the court a quo, had only one
cause of action against the respondents, namely, the breach of the
MOA upon the latters refusal to pay the first two installments in
payment of the property as agreed upon, and turn over to the
petitioners the possession of the real property, as well as the house
constructed thereon occupied by the respondents. The claim for
damages for reasonable compensation for the respondents use and
occupation of the property, in the interim, as well as moral and
exemplary damages suffered by the petitioners on account of the
aforestated breach of contract of the respondents are merely
incidental to the main cause of action, and are not independent or
separate causes of action.[18]
The action of the petitioners for the rescission of the MOA on
account of the respondents breach thereof and the latters failure to
return the premises subject of the complaint to the petitioners, and
the respondents eviction therefrom is a real action.[19] As such, the
action should have been filed in the proper court where the property is
located, namely, in Paraaque City, conformably with Section 1, Rule 4
of the Rules of Court which reads:
SECTION 1. Venue of real actions. Actions affecting title to or

possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated.
Since the petitioners, who were residents of Malolos, Bulacan, filed

their complaint in the said RTC, venue was improperly laid; hence, the
SPS. VICTOR & MILAGROS G.R. No. 147417 March 2000, petitioners moved for reconsideration which was denied
PEREZ and CRISTINA by the trial court on 25 May 2000 and received by petitioners on 18
AGRAVIADOR AVISO, Present: June 2000. On 17 August 2000, petitioners filed an original action
P e t i t i o n e r s, for certiorari before the Court of Appealsimputing grave abuse of
PUNO, discretion on the part of the trial court in dismissing the complaint
Chairman, against respondent Hermano.
AUSTRIA-MARTINEZ,
CALLEJO, SR., On 19 October 2000, the Court of Appeals rendered the first assailed
- versus - TINGA and Resolution dismissing the petition for certiorari for having been filed
CHICO-NAZARIO, JJ. beyond the reglementary period pursuant to Section 4, Rule 65 of the
1997 Rules on Civil Procedure, as amended. On 02 March 2001, the
Promulgated: second assailed Resolution was promulgated dismissing petitioners
motion for reconsideration, the Court of Appeals holding that:
ANTONIO HERMANO, July 8, 2005
R e s p o n d e n t. From the time petitioners received the assailed Order on March 21,
x------------------------------------------- 2000 and filed their motion for reconsideration, four (4) days had
x elapsed. On June 18, 2000, petitioners received the denial of their
\\ motion for reconsideration. When the instant petition was filed on
This is a petition for review on certiorari under Rule 45 of the Rules of August 17, 2000, a total of 63 days had elapsed.
Court assailing the Resolution[1] of the Court of Appeals dismissing
petitioners original action for certiorari under Rule 65 for being filed A.M. No. 00-2-03-50 further amending Section 4, Rule 65 of the New
out of time. Assailed as well is the Resolution[2] dismissing petitioners Rules on Civil Procedure states that the petition shall be filed not later
motion for reconsideration. than sixty (60) days from notice of the judgment, Order or Resolution
and in case a motion for reconsideration or new trial is timely filed,
The pertinent facts of the case are as follows: whether such motion is required or not, the 60-day period shall be
counted from notice of the denial of said motion.
On 27 April 1998, petitioners Cristina Agraviador Aviso and spouses
Victor and Milagros Perez filed a civil case for Enforcement of Contract Viewed from its light, the assailed Orders had already attained finality,
and Damages with Prayer for the Issuance of a Temporary Restraining and are now beyond the power of this Court to review.[4]
Order (TRO) and/or Preliminary Injunction against Zescon Land, Inc.
and/or its President Zenie Sales-Contreras, Atty. Perlita Vitan-Ele and
against respondent herein Antonio Hermano before the Regional Trial
Court (RTC) of Quezon City, Branch 224.[3] On 15 May 1998, Aggrieved by the foregoing ruling, petitioners are now before us
respondent (then defendant) Hermano filed his Answer with assigning the following
Compulsory Counterclaim. On 17 January 2000, respondent Hermano
filed a Motion with Leave to Dismiss the Complaint or Ordered Severed MANIFEST AND/OR SERIOUS ERROR COMMITTED BY THE HONORABLE
for Separate Trial which was granted by the trial court in an Order COURT OF APPEALS IN THE COMPUTATION OF THE PERIOD WITHIN
dated 28 February 2000. WHICH THE PETITIONERS FILED THEIR PETITION FOR CERTIORARI
BEFORE IT AND CONSEQUENTLY COMMITTED GRAVE ABUSE OF
This Order was received by petitioners on 21 March 2000. On 23 DISCRETION IN THE APPRECIATION OF FACTS AND/OR
MISAPPREHENSION OF FACTS, WITH ITS FINDING OF FACT NOT
BEING BORNE BY THE RECORD OR EVIDENCE, AND THUS ITS However, on 01 September 2000, during the pendency of the case
CONCLUSION IS ENTIRELY BASELESS.[5] before the Court of Appeals, Section 4 was amended anew by A.M. No.
00-2-03-SC[6] which now provides:
Sec. 4. When and where petition filed. The petition shall be filed not
According to petitioners, following the amendment introduced by A.M. later than sixty (60) days from notice of the judgment, order or
No. 00-2-03-SC to Section 4, Rule 65 of the 1997 Rules on Civil resolution. In case a motion for reconsideration or new trial is timely
Procedure, their petition was filed on the 60th day, thus, within the filed, whether such motion is required or not, the sixty (60) day period
reglementary period. Respondent insists, on the other hand, that the shall be counted from notice of the denial of said motion.
petition was filed on the 61st day while the Court of Appeals had
declared that the petition was filed on the 63rd day. The petition shall be filed in the Supreme Court or, if it relates to the
We agree in the position taken by petitioners. acts or omissions of a lower court or of a corporation, board, officer or
person, in the Regional Trial Court exercising jurisdiction over the
Admittedly, at the time petitioners filed their petition for certiorari on territorial area as defined by the Supreme Court. It may also be filed
17 August 2000, the rule then prevailing was Section 4, Rule 65 of the in the Court of Appeals whether or not the same is in aid of its
1997 Rules on Civil Procedure, as amended by Circular No. 39-98 appellate jurisdiction, or in the Sandiganbayan if it is in aid of its
effective 01 September 1998, which provides: appellate jurisdiction. If it involves the acts or omissions of a quasi-
judicial agency, unless otherwise provided by law or these rules, the
Sec. 4. Where petition filed. The petition shall be filed not later than petition shall be filed in and cognizable only by the Court of Appeals.
sixty (60) days from notice of the judgment, order or resolution
sought to be assailed in the Supreme Court, or if it relates to the acts No extension of time to file the petition shall be granted except for
or omissions of a lower court or of a corporation, board, officer or compelling reason and in no case exceeding fifteen (15) days.
person in the Regional Trial Court exercising jurisdiction over the (Emphasis supplied)
territorial area as defined by the Supreme Court. It may also be filed
in the Court of Appeals whether or not the same is in aid of its
appellate jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or omissions of a quasi-judicial Under this amendment, the 60-day period within which to file the
agency, and unless otherwise provided by law or these Rules, the petition starts to run from receipt of notice of the denial of the motion
petition shall be filed in and cognizable only by the Court of Appeals. for reconsideration, if one is filed.[7]
If the petitioner had filed a motion for new trial or reconsideration in
due time after notice of said judgment, order, or resolution, the period In Narzoles v. National Labor Relations Commission,[8] we described
herein fixed shall be interrupted. If the motion is denied, the this latest amendment as curative in nature as it remedied the
aggrieved party may file the petition within the remaining period, but confusion brought about by Circular No. 39-98 because,
which shall not be less than five (5) days in any event, reckoned from historically, i.e., even before the 1997 revision to the Rules of Civil
notice of such denial. No extension of time to file the petition shall be Procedure, a party had a fresh period from receipt of the order
granted except for the most compelling reason and in no case to denying the motion for reconsideration to file a petition for certiorari.
exceed fifteen (15) days. (Emphasis supplied) Curative statutes, which are enacted to cure defects in a prior law or
to validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements, by their very essence,
are retroactive.[9] And, being a procedural rule, we held in Sps. Ma. other defendants, namely Zescon Land, Inc. and/or its President Zenie
Carmen and Victor Javellana v. Hon. Presiding Judge Benito Sales-Contreras and Atty. Perlita Vitan-Ele, was one for Enforcement
Legarda[10] that procedural laws are construed to be applicable to of Contract and Damages with Prayer for the Issuance of a Temporary
actions pending and undetermined at the time of their passage, and Restraining Order (TRO) and/or Preliminary Injunction docketed as
are deemed retroactive in that sense and to that extent. Civil Case No. Q-98-34211 and raffled to Branch 224.
Consequently, petitioners had a fresh period of 60 days from the time Petitioners presented three causes of action in their complaint, the
they received the Order of the trial court denying their motion for first for enforcement of contract to sell entered into between
reconsideration on 18 June 2000. When they filed their petition with petitioners and Zescon Land, Inc., the second for annulment or
the Court of Appeals on 17 August 2000, exactly 60 days had elapsed rescission of two contracts of mortgage entered into between
following the rule that in computing a period, the first day shall be petitioners and respondent Hermano and the third for damages
excluded and the last day included.[11] Hence, there can be no doubt against all defendants.
that the petition was filed within the reglementary period for doing so
and it was reversible error on the part of the Court of Appeals in not For the first cause of action, petitioners allege that sometime in
giving said petition due course. However, instead of remanding the November 1997, they entered into a Contract to Sell with Zescon
case to the Court of Appeals which would only unduly prolong the Land, Inc., through Zenie Sales-Contreras, for the purchase of five (5)
disposition of the substantive issue raised, we shall resolve the parcels of land in the total amount of Nineteen Million One Hundred
petition originally filed therein. Four Thousand Pesos (P19,104,000.00). As part of their agreement, a
portion of the purchase price would be paid to them as down payment,
Petitioners brought to the Court of Appeals on petition another portion to be given to them as cash advance upon the
for certiorari under Rule 65 the lone issue of: execution of the contract and another portion to be used by the buyer,
Zescon Land, Inc., to pay for loans earlier contracted by petitioners
WHETHER OR NOT THE PUBLIC RESPONDENT [Hon. Emilio L. Leachon, which loans were secured by mortgages.
Jr., Presiding Judge, RTC, Branch 224, Quezon City] HAD PLAINLY AND
MANIFESTLY ACTED WITH GRAVE ABUSE OF DISCRETION, IN EXCESS Re-pleading the foregoing in their second cause of action, petitioners
OF JURISDICTION, TANTAMOUNT TO LACK OF JURISDICTION, IN contend that in a tricky machination and simultaneous with the
DISMISSING THE COMPLAINT AS AGAINST RESPONDENT ANTONIO execution of the aforesaid Contract to Sell, they were made to sign
HERMANO IN CIVIL CASE NO. Q-98-34211.[12] other documents, two of which were Mortgage deeds over the same
five properties in favor of respondent Hermano, whom they had never
met. It was allegedly explained to them by Sales-Contreras that the
mortgage contracts would merely serve to facilitate the payment of
Petitioners assert that respondent Hermano should not have been the price as agreed upon in their Contract to Sell. Petitioners claim
dismissed from the complaint because: (1) He did not file a motion to that it was never their intention to mortgage their property to
dismiss under Rule 16 of the Rules of Court and, in fact, his Motion respondent Hermano and that they have never received a single
with Leave to Dismiss the Complaint or Ordered Severed for Separate centavo from mortgaging their property to him. Petitioners
Trial was filed almost two years after he filed his Answer to the acknowledge, however, that respondent Hermano was responsible for
complaint; (2) There was no misjoinder of causes of action in this discharging their obligations under the first mortgage and for having
case; and (3) There was no misjoinder of parties. the titles over the subject lands released, albeit not to them but to
respondent Hermano. They seek a TRO against respondent Hermano
The case filed by petitioners against respondent Hermano and the who had informed them that he would be foreclosing the subject
properties. Hermano as party defendant to annul and/or rescind the Real Estate
Mortgages of subject properties. There is a misjoinder of parties
In their third cause of action, petitioners pray for damages against all defendants under a different transaction or cause of action; that under
the defendants alleging that: the said Rule 2, Section 6, upon motion of defendant Hermano in the
instant case, the complaint against defendant Hermano can be
Due to the failure and refusal, without any valid justification and severed and tried separately; . . . .[15]
reason, by defendants Zescon and Contreras to comply with their
obligations under the Contract to Sell, including their failure and
refusal to pay the sums stipulated therein, and in misleading and
misrepresenting the plaintiffs into mortgaging their properties to Over petitioners opposition to said motion, the same was granted by
defendant Antonio Hermano, who in turn had not paid the plaintiffs the trial court in its Order dated 28 February 2000 on the justification
the proceeds thereof, putting them in imminent danger of losing the that:
same, plaintiffs had suffered, and continue to suffer, sleepless nights .
. . . [D]efendant having filed a special civil action for judicial
By reason of defendants Zescon and Contrerass failure and refusal to foreclosure of mortgage and now pending before RTC Branch 216, he
pay the sums stipulated in the Contract to Sell, and of defendant should be dropped as one of the defendants in this case and whatever
Antonio Hermanos not having paid plaintiffs the proceeds of the claims plaintiffs may have against defendant Hermano, they can set it
mortgage agreements, plaintiffs had been deprived of the beneficial up by way of an answer to said judicial foreclosure.[16]
use of the proceeds and stood to lose, as they continue to lose, by
way of unearned profits at least P1,000,000.00.[13]
And, in an Order dated 25 May 2000, the trial court resolved

petitioners motion for reconsideration by dismissing the same, to wit:
In his Answer with (Compulsory) Counterclaim dated 15 May 1998,
respondent Hermano denied petitioners allegations.[14] Then, on 19 After going over the arguments of the parties, the Court believes that
February 1999, respondent Hermano filed a civil case entitled Judicial defendant Hermano has nothing to do with the transaction which the
Foreclosure of Real Estate Mortgage against petitioner Aviso docketed plaintiffs entered into with defendant Zescon Land, Inc. Besides, the
as Civil Case No. Q-99-36914 and raffled to Branch 216 of the RTC of said motion raised matters and defenses previously considered and
Quezon City. On 17 January 2000, respondent Hermano filed a Motion passed upon by the Court.[17]
With Leave To Dismiss The Complaint Against Defendant Antonio
Hermano, Or Ordered Severed For Separate Trial before Branch 224.
In said motion, respondent Hermano argued that there was a mis-
joinder of causes of action under Rule 2, Section 6 of the Rules of It is these two Orders that were brought up by petitioners to the Court
Court. To quote respondent Hermano: of Appeals on petition for Certiorari under Rule 65. The pivotal issue to
be resolved, therefore, is whether or not respondent trial court
3. In the instant case, the plaintiffs action for the Enforcement of committed grave abuse of discretion in dismissing the complaint
Contract and Damages with Prayer for The Issuance of a Temporary against respondent Hermano in Civil Case No. Q-98-34211.
Restraining Order And/Or Preliminary Injunction against Zescon Land,
Inc., and/or its President Zenie Sales Contreras, may not, under Rule As far as we can glean from the Orders of the trial court, respondent
2, Section 6 of the 1997 Rules of Civil Procedure, join defendant Hermano was dropped from the complaint on the ground of misjoinder
of causes of action. Petitioners, on the other hand, insist that there The provision should be construed so as to avoid such multiplicity,
was no misjoinder in this case. where possible, without prejudice to the rights of the litigants. Being
of a remedial nature, the provision should be liberally construed, to
To better understand the present controversy, it is vital to revisit the the end that related controversies between the same parties may be
rules on joinder of causes of action as exhaustively discussed adjudicated at one time; and it should be made effectual as far as
in Republic v. Hernandez,[18] thus: practicable, with the end in view of promoting the efficient
administration of justice.
By a joinder of actions, or more properly, a joinder of causes of action,
is meant the uniting of two or more demands or rights of action in one The statutory intent behind the provisions on joinder of causes of
action; the statement of more than one cause of action in a action is to encourage joinder of actions which could reasonably be
declaration. It is the union of two or more civil causes of action, each said to involve kindred rights and wrongs, although the courts have
of which could be made the basis of a separate suit, in the same not succeeded in giving a standard definition of the terms used or in
complaint, declaration or petition. A plaintiff may under certain developing a rule of universal application. The dominant idea is to
circumstances join several distinct demands, controversies or rights of permit joinder of causes of action, legal or equitable, where there is
action in one declaration, complaint or petition. some substantial unity between them. While the rule allows a plaintiff
to join as many separate claims as he may have, there should
As can easily be inferred from the above definitions, a party is nevertheless be some unity in the problem presented and a common
generally not required to join in one suit several distinct causes of question of law and fact involved, subject always to the restriction
action. The joinder of separate causes of action, where allowable, is thereon regarding jurisdiction, venue and joinder of parties. Unlimited
permissive and not mandatory in the absence of a contrary statutory joinder is not authorized.
provision, even though the causes of action arose from the same
factual setting and might under applicable joinder rules be joined. Our rule on permissive joinder of causes of action, with the proviso
Modern statutes and rules governing joinders are intended to avoid a subjecting it to the correlative rules on jurisdiction, venue and joinder
multiplicity of suits and to promote the efficient administration of of parties and requiring a conceptual unity in the problems presented,
justice wherever this may be done without prejudice to the rights of effectively disallows unlimited joinder.
the litigants. To achieve these ends, they are liberally construed.
Section 6, Rule 2 on misjoinder of causes of action provides:
While joinder of causes of action is largely left to the option of a party
litigant, Section 5, Rule 2 of our present Rules allows causes of action Sec. 6. Misjoinder of causes of action. - Misjoinder of causes of action
to be joined in one complaint conditioned upon the following is not a ground for dismissal of an action. A misjoined cause of action
requisites: (a) it will not violate the rules on jurisdiction, venue and may, on motion of a party or on the initiative of the court, be severed
joinder of parties; and (b) the causes of action arise out of the same and proceeded with separately.
contract, transaction or relation between the parties, or are for
demands for money or are of the same nature and character. There is misjoinder of causes of action when the conditions for joinder
under Section 5, Rule 2 are not met. Section 5 provides:
The objectives of the rule or provision are to avoid a multiplicity of
suits where the same parties and subject matter are to be dealt with Sec. 5. Joinder of causes of action. - A party may in one pleading
by effecting in one action a complete determination of all matters in assert, in the alternative or otherwise, as many causes of action as he
controversy and litigation between the parties involving one subject may have against an opposing party, subject to the following
matter, and to expedite the disposition of litigation at minimum cost. conditions:
petitioners to sign the mortgage deeds in favor of respondent
(a) The party joining the causes of action shall comply with the rules Hermano. There is also the question of which of the four contracts
on joinder of parties; were validly entered into by the parties. Note that under Article 2085
of the Civil Code, for a mortgage to be valid, it is imperative that the
(b) The joinder shall not include special civil actions or actions mortgagor be the absolute owner of the thing mortgaged. Thus,
governed by special rules; respondent Hermano will definitely be affected if it is subsequently
declared that what was entered into by petitioners and Zescon Land,
(c) Where the causes of action are between the same parties but Inc., was a Contract of Sale (as evidenced by the Deed of Absolute
pertain to different venues or jurisdictions, the joinder may be allowed Sale signed by them) because this would mean that the contracts of
in the Regional Trial Court provided one of the causes of action falls mortgage were void as petitioners were no longer the absolute owners
within the jurisdiction of said court and the venue lies therein; and of the properties mortgaged. Finally, there is also the question of
whether or not Zescon Land, Inc., as represented by Sales-Contreras,
(d) Where the claims in all the causes of action are principally for and respondent Hermano committed fraud against petitioners as to
recovery of money, the aggregate amount claimed shall be the test of make them liable for damages.
jurisdiction.
Prescinding from the foregoing, and bearing in mind that the joinder of
As far as can be gathered from the assailed Orders, it is the first causes of action should be liberally construed as to effect in one action
condition - on joinder of parties - that the trial court deemed to be a complete determination of all matters in controversy involving one
lacking. It is well to remember that the joinder of causes of action subject matter, we hold that the trial court committed grave abuse of
may involve the same parties or different parties. If the joinder discretion in severing from the complaint petitioners cause of action
involves different parties, as in this case, there must be a question of against respondent Hermano.
fact or of law common to both parties joined, arising out of the same
transaction or series of transaction.[19] WHEREFORE, premises considered, the Resolution of the Court of
Appeals dated 19 October 2000 dismissing petitioners petition
In herein case, petitioners have adequately alleged in their complaint for certiorari and its Resolution dated 02 March 2001 denying
that after they had already agreed to enter into a contract to sell with petitioners motion for reconsideration are REVERSED and SET ASIDE.
Zescon Land, Inc., through Sales-Contreras, the latter also gave them The petition for certiorari is hereby GRANTED. The Orders of the
other documents to sign, to wit: A Deed of Absolute Sale over the Regional Trial Court of Quezon City, Branch 224, dated 28 February
same properties but for a lower consideration, two mortgage deeds 2000 and 25 May 2000 are ANNULLED and SET ASIDE. The RTC is
over the same properties in favor of respondent Hermano with further ordered to reinstate respondent Antonio Hermano as one of
accompanying notes and acknowledgment receipts for Ten Million the defendants in Civil Case No. Q-98-34211. No costs.
pesos (P10,000,000) each. Petitioners claim that Zescon Land, Inc.,
through Sales-Contreras, misled them to mortgage their properties SO ORDERED.
which they had already agreed to sell to the latter.
From the above averments in the complaint, it becomes reasonably

apparent that there are questions of fact and law common to both
Zescon Land, Inc., and respondent Hermano arising from a series of
transaction over the same properties. There is the question of fact, for
example, of whether or not Zescon Land, Inc., indeed misled
[G.R. No. 164041. July 29, 2005] In a verified Amended Petition for Correction of Entry, the Petitioner
ROSENDO ALBA, minor, represented by his mother and natural prays, inter alia, that the following entries appearing in the subject
guardian, Armi A. Alba, and ARMI A. ALBA, in her personal Certificate of Live Birth be deleted:
capacity, petitioners, vs. COURT OF APPEALS and ROSENDO C.
HERRERA, respondents. 1. All informations having reference to him as the father of the child
mentioned therein;
Assailed in this petition for certiorari
[1]
are the February 27, 2004
decision [2] and the May 14, 2004 resolution[3] of the Court of Appeals
in CA-G.R. SP No. 61883, which dismissed petitioners original action 2. The surname Herrera appended to the childs name;
for annulment of judgment[4] of the Regional Trial Court of Manila,
Branch 37, and denied the motion for reconsideration, respectively. 3. His alleged marriage with the natural mother of the child.
The antecedent facts show that on October 21, 1996, private Finding the Petition to be sufficient in form and substance, let the
respondent Rosendo C. Herrera filed a petition[5] for cancellation of Petition be set for hearing on January 24, 1997 at nine oclock in the
the following entries in the birth certificate of Rosendo Alba Herrera, morning before this Branch at Rooms 447-449, Fourth Floor, Manila
Jr., to wit: (1) the surname Herrera as appended to the name of said City Hall. All interested parties are hereby notified of the said hearing
child; (2) the reference to private respondent as the father of Rosendo and are ordered to show cause why the Petition should not be granted.
Alba Herrera, Jr.; and (3) the alleged marriage of private respondent
to the childs mother, Armi A. Alba (Armi) on August 4, 1982 in Let a copy of this Order be published at the expense of the Petitioner,
Mandaluyong City. He claimed that the challenged entries are false once a week for three (3) consecutive weeks, in a newspaper of
and that it was only sometime in September 1996 that he learned of general circulation in the City of Manila, and raffled pursuant to P.D.
the existence of said birth certificate. 1079.
Private respondent alleged that he married only once, i.e., on June
28, 1965 with Ezperanza C. Santos and never contracted marriage Furnish the Office of the Solicitor General and the Office of the Local
with Armi nor fathered Rosendo Alba Herrera, Jr. In support thereof, Civil Registrar of the City of Manila with copies of the Petition and of
he presented certifications from the Civil Registrar of Mandaluyong this Order.
City[6] and the National Statistics Office,[7] both stating that they have
no record of marriage between private respondent and Armi. Let the same be likewise furnished the Private Respondent Armi Alba
Herrera at the address indicated in the subject Certificate of Live Birth.
On November 12, 1996, private respondent filed an amended
petition,[8] impleading Armi and all the persons who have or claim any
SO ORDERED.[10]
interest in th[e] petition.[9]
On November 27, 1996, the trial court issued an Order setting the On January 13, 1997, before the scheduled January 24, 1997
petition for hearing on January 24, 1997, and directed the publication hearing, the trial court issued an Amended Order[11] with substantially
and service of said order to Armi at her address appearing in the birth the same contents, except that the hearing was re-scheduled to
certificate which is No. 418 Arquiza St., Ermita, Manila, and to the Civil February 26, 1997. A copy of said Amended Order was published in
Registrar of the City of Manila and the Solicitor General. The full text Today, a newspaper of general circulation in Manila in its January 20,
of the order, reads: 27, and February 3, 1997 issues. Copies thereof were also sent to
Armi at No. 418 Arquiza St., Ermita, Manila, on January 17, 1997, the
Local Civil Registrar of Manila and the Solicitor General.
At the scheduled hearing on February 26, 1997, the counsel from ordered deleted, and the child shall be known as ROSENDO ALBA; and
the Office of the Solicitor General appeared but filed no opposition to the entry under the date and place of marriage, the date August 4,
the petition. Armi, on the other hand was not present. The return of 1982, Mandaluyong, MM is likewise ordered deleted or cancelled.
the notice sent to her had the following notation:
SO ORDERED.[16]
This is to certify that on January 17, 1997, the undersigned [process
server] personally served a copy of the Amended Order in Sp. Proc. On November 24, 2000, Armi and petitioner minor filed a petition
No. 96-80512 dated January 13, 1997 to the private respondent, Armi for annulment of judgment before the Court of Appeals on the grounds
Alba Herrera at 418 Arquiza St., Ermita, Manila, but failed and of extrinsic fraud and lack of jurisdiction over their person. She
unavailing for reason that (sic), private respondent is no allegedly came to know of the decision of the trial court only on
longer residing at said given address.[12] February 26, 1998, when San Beda College, where her son was
enrolled as a high school student, was furnished by private respondent
On April 1, 1997, the court a quo rendered a decision which with a copy of a court order directing the change of petitioner minors
became final and executory on June 2, 1997.[13] The dispositive surname from Herrera to Alba.
portion thereof, states:
Armi averred that private respondent was aware that her address
is at Unit 302 Plaza Towers Condominium, 1175 Lorenzo Guerrero St.,
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of
Ermita, Manila, because such was her residence when she and private
Court, judgment is hereby rendered ordering the correction of the
respondent cohabited as husband and wife from 1982 to 1988; and
entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in
her abode when petitioner minor was born on March 8, 1985. Even
such a way that the entry under the name of the child, the surname
after their separation, private respondent continued to give support to
Herrera, Jr.[,] is ordered deleted, and the child shall be known as
their son until 1998; and that Unit 302 was conveyed to her by private
ROSENDO ALBA; and that the entry under the date and place of
respondent on June 14, 1991 as part of his support to petitioner
marriage, the date August 4, 1982, Mandaluyong, MM is likewise
minor. According to Armi, her address i.e., No. 418 Arquiza St.,
ordered deleted or cancelled.
Ermita, Manila, as appearing in the birth certificate of their son, was
entered in said certificate through the erroneous information given by
Let a copy of this Decision be furnished the Local Civil Registrar of her sister, Corazon Espiritu. She stressed that private respondent
Manila for proper correction and entry. knew all along that No. 418 Arquiza St., is the residence of her sister
and that he deliberately caused the service of notice therein to
SO ORDERED.[14] prevent her from opposing the petition.
Private respondent filed a motion[15] for amendment of the In his answer, private respondent denied paternity of petitioner
decretal portion of the decision to include the cancellation of all entries minor and his purported cohabitation with Armi. He branded the
having reference to him as the father of petitioner minor. This was allegations of the latter as false statements coming from a polluted
granted in the August 11, 1997 order of the trial court as follows: source.[17]
On February 27, 2004, the Court of Appeals dismissed the petition
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of holding, among others, that petitioner failed to prove that private
Court, judgment is hereby rendered ordering the correction of the respondent employed fraud and purposely deprived them of their day
entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in in court. It further held that as an illegitimate child, petitioner minor
such a way that the entries under the name of the child, the surname
Herrera, Jr., and the name of the father Rosendo Caparas Herrera are
should bear the surname of his mother.[18] Petitioners filed a motion required in the present case. It is enough that the trial court is vested
for reconsideration but was denied. with jurisdiction over the subject matter.
Hence, the instant petition. The service of the order at No. 418 Arquiza St., Ermita, Manila and
the publication thereof in a newspaper of general circulation in Manila,
Under Section 2, Rule 47 of the 1997 Revised Rules of Civil
sufficiently complied with the requirement of due process, the essence
Procedure, judgments may be annulled on the grounds of lack of
of which is an opportunity to be heard. Said address appeared in the
jurisdiction and extrinsic fraud.[19]
birth certificate of petitioner minor as the residence of Armi.
Whether or not the trial court acquired jurisdiction over the person Considering that the Certificate of Birth bears her signature, the
of petitioner and her minor child depends on the nature of private entries appearing therein are presumed to have been entered with her
respondents action, that is, in personam, in rem or quasi in rem. An approval. Moreover, the publication of the order is a notice to all
action in personam is lodged against a person based on personal indispensable parties, including Armi and petitioner minor, which binds
liability; an action in rem is directed against the thing itself instead of the whole world to the judgment that may be rendered in the petition.
the person; while an action quasi in rem names a person as An in rem proceeding is validated essentially through
defendant, but its object is to subject that persons interest in a publication.[29] The absence of personal service of the order to Armi
property to a corresponding lien or obligation.[20] was therefore cured by the trial courts compliance with Section 4, Rule
108, which requires notice by publication, thus:
Hence, petitions directed against the thing itself or
the res,[21] which concerns the status of a person, [22] like a petition
SEC. 4. Notice and publication. Upon the filing of the petition, the
for adoption,[23] annulment of marriage,[24] or correction of entries in court shall, by an order, fix the time and place for the hearing of the
the birth certificate,[25] as in the instant case, are actions in rem. same, and cause reasonable notice thereof to be given to the persons
In an action in personam, jurisdiction over the person of the named in the petition. The court shall also cause the order to be
defendant is necessary for the court to validly try and decide the case. published once a week for three (3) consecutive weeks in a newspaper
In a proceeding in rem or quasi in rem, jurisdiction over the person of of general circulation in the province.
the defendant is not a prerequisite to confer jurisdiction on the court,
provided that the latter has jurisdiction over the res. Jurisdiction over In Barco v. Court of Appeals, the trial court granted a petition for
the res is acquired either (a) by the seizure of the property under legal correction/change of entries in a minors birth certificate to reflect the
process, whereby it is brought into actual custody of the law; or (b) as name of the minors real father as well as to effect the corresponding
a result of the institution of legal proceedings, in which the power of change of her surname. In seeking to annul said decision, the other
the court is recognized and made effective.[26] The service of children of the alleged father claimed that they are indispensable
summons or notice to the defendant is not for the purpose of vesting parties to the petition for correction, hence, the failure to implead
the court with jurisdiction but merely for satisfying the due process them is a ground to annul the decision of the trial court. The Court of
requirements.[27] Appeals denied the petition which was sustained by this Court on the
ground, inter alia, that while petitioner is indeed an indispensable
In the case at bar, the filing with the trial court of the petition for party, the failure to implead her was cured by the publication of the
cancellation vested the latter jurisdiction over the res. Substantial order of hearing. Thus
corrections or cancellations of entries in civil registry records affecting
the status or legitimacy of a person may be effected through the
Undoubtedly, Barco is among the parties referred to in Section 3 of
institution of a petition under Rule 108 of the Revised Rules of Court,
Rule 108. Her interest was affected by the petition for correction, as
with the proper Regional Trial Court.[28] Being a proceeding in rem,
any judicial determination that June was the daughter of Armando
acquisition of jurisdiction over the person of petitioner is therefore not
would affect her wards share in the estate of her father. It cannot be validated essentially through publication. Publication is notice to the
established whether Nadina knew of Mary Joys existence at the time whole world that the proceeding has for its object to bar indefinitely all
she filed the petition for correction. Indeed, doubt may always be cast who might be minded to make an objection of any sort against the
as to whether a petitioner under Rule 108 would know of all the right sought to be established. It is the publication of such notice that
parties whose interests may be affected by the granting of a petition. brings in the whole world as a party in the case and vests the court
For example, a petitioner cannot be presumed to be aware of all the with jurisdiction to hear and decide it.[30]
legitimate or illegitimate offsprings of his/her spouse or paramour. The
fact that Nadina amended her petition to implead Francisco and Furthermore, extrinsic fraud, which was private respondents
Gustilo indicates earnest effort on her part to comply with Section 3 as alleged concealment of Armis present address, was not proven.
quoted above. Extrinsic fraud exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby the defeated
Yet, even though Barco was not impleaded in the petition, the Court of party was prevented from presenting fully his side of the case by fraud
Appeals correctly pointed out that the defect was cured by compliance or deception practiced on him by the prevailing party. Here, Armi
with Section 4, Rule 108, which requires notice by publication, thus: contended that private respondent is aware of her present address
because they lived together as husband and wife in the condominium
Section 4. Upon the filing of the petition, the court shall, by order, fix unit from 1982 to 1988 and because private respondent continued to
the time and place for the hearing of the same, and cause reasonable give support to their son until 1998. To prove her claim, she presented
notice thereof to be given to the persons named in the petition. The (1) private respondents title over the condominium unit; (2) receipts
court shall also cause the order to be published once a week for three allegedly issued to private respondent for payment of homeowners or
(3) consecutive weeks in a newspaper of general circulation in the association dues; (2) a photocopy of a January 14, 1991 deed of sale
province. of the subject unit in favor of Armi; and (3) the subsequent title
issued to the latter. However, these documents only tend to prove
The purpose precisely of Section 4, Rule 108 is to bind the private respondents previous ownership of the unit and the
whole world to the subsequent judgment on the petition. The subsequent transfer thereof to Armi, but not the claimed live-in
sweep of the decision would cover even parties who should relationship of the parties. Neither does the sale prove that the
have been impleaded under Section 3, Rule 108, but were conveyance of the unit was part of private respondents support to
inadvertently left out. The Court of Appeals correctly noted: petitioner minor. Indeed, intimate relationships and family relations
cannot be inferred from what appears to be an ordinary business
The publication being ordered was in compliance with, and borne out transaction.
by the Order of January 7, 1985. The actual publication of the Although the January 14, 1991 deed of sale[31] stated that Armi
September 22, 1983 Order, conferred jurisdiction upon the respondent resides at 1175 L. Guerrero St., Ermita, Manila, the same is not
court to try and decide the case. While nobody appeared to oppose sufficient to prove that private respondent has knowledge of Armis
the instant petition during the December 6, 1984 hearing, that did not address because the former objected to the offer of the deed for being
divest the court from its jurisdiction over the case and of its authority a mere photocopy.[32] The counsel for petitioners even admitted that
to continue trying the case. For, the rule is well-settled, that they do not have the original of the deed and that per certification of
jurisdiction, once acquired continues until termination of the case. the Clerk of Court, the Notary Public who notarized the deed of sale
did not submit a copy of the notarized document as required by the
Verily, a petition for correction is an action in rem, an action against a rules.[33] The deed cannot thus be the basis of ascribing knowledge of
thing and not against a person. The decision on the petition binds not Armis address to private respondent inasmuch as the authenticity
only the parties thereto but the whole world. An in rem proceeding is
thereof was neither admitted by private respondent nor proven by Finally, petitioner failed to establish the merits of her petition to
petitioners. annul the trial courts decision. In an action for annulment of
judgment, the petitioner must convince the court that something may
While Armi presented the alleged love letters/notes from private
indeed be achieved should the assailed decision be annulled.[39] Under
respondent, they were only attached as annexes to the petition and
Article 176[40] of the Family Code as amended by Republic Act (RA)
not formally offered as evidence before the Court of Appeals. More
No. 9255, which took effect on March 19, 2004, illegitimate children
importantly, said letters/notes do not have probative value because
shall use the surname of their mother, unless their father recognizes
they were mere photocopies and never proven to be an authentic
their filiation, in which case they may bear the fathers surname.
writing of private respondent. In the same vein, the affidavits[34] of
In Wang v. Cebu Civil Registrar,[41] it was held that an illegitimate
Armi and her sister, Corazon Espiritu, are of no evidentiary weight.
child whose filiation is not recognized by the father, bears only a given
The basic rule of evidence is that unless the affiants themselves are
name and his mothers surname. The name of the unrecognized
placed on the witness stand to testify on their affidavits, such
illegitimate child identifies him as such. It is only when said child is
affidavits must be rejected for being hearsay. Stated differently, the
recognized that he may use his fathers surname, reflecting his status
declarants of written statements pertaining to disputed facts must be
as an acknowledged illegitimate child.
presented at the trial for cross-examination.[35] Inasmuch as Armi and
her sister were not presented before the Court of Appeals to affirm the In the present case, it is clear from the allegations of Armi that
veracity of their affidavits, the same are considered hearsay and petitioner minor is an illegitimate child because she was never married
without probative value. to private respondent. Considering that the latter strongly asserts that
he is not the father of petitioner minor, the latter is therefore an
Ei incumbit probotio qui dicit, non qui negat. He who asserts, not
unrecognized illegitimate child. As such, he must bear the surname of
he who denies, must prove.[36] Armis claim that private respondent is
his mother.
aware of her present address is anchored on the assertion of a live-in
relationship and support to her son. Since the evidence presented by In sum, the substantive and procedural aspects of the instant
Armi is not sufficient to prove the purported cohabitation and support, controversy do not warrant the annulment of the trial courts decision.
it follows that private respondents knowledge of Armis address was
WHEREFORE, the petition is DISMISSED. The February 27, 2004
likewise not proven. Thus, private respondent could not have
decision and the May 14, 2004 resolution of the Court of Appeals in
deliberately concealed from the court that which was not shown to be
CA-G.R. SP No. 61883 are AFFIRMED.
known to him. The Court of Appeals therefore correctly dismissed the
petition for annulment of judgment on the ground of failure to SO ORDERED.
establish extrinsic fraud.
The proper remedy of a party aggrieved by a decision of the Court
of Appeals in an action to annul a judgment of a Regional Trial Court is
a petition for review on certiorari under Rule 45 of the Revised Rules
of Civil Procedure, where only questions of law may be raised. The
resort of petitioner to the instant civil action for certiorari under Rule
65 is therefore erroneous. The special civil action of certiorari will not
be allowed as a substitute for failure to timely file a petition for review
under Rule 45, which should be instituted within 15 days [37] from
receipt of the assailed decision or resolution. The wrong choice of
remedy thus provides another reason to dismiss this petition.[38]
G.R. No. 175799 November 28, 2011 license to do business in the Philippines, nor filed with the Securities
NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED, Petitioner, and Exchange Commission (SEC) a Written Power of Attorney
vs. designating some person on whom summons and other legal
LEPANTO CONSOLIDATED MINING COMPANY, Respondent. processes maybe served. The trial court also held that the Complaint
sufficiently stated a cause of action. The other allegations in the
This is a Petition for Review on Certiorari assailing the Decision 1 of the Motion to Dismiss were brushed aside as matters of defense which can
Court of Appeals dated September 8, 2006 in CA-G.R. SP No. 94382 best be ventilated during the trial.
and its Resolution2 dated December 12, 2006, denying the Motion for
Reconsideration. On December 27, 2005, petitioner filed a Motion for Reconsideration.7
On March 6, 2006, the trial court issued an Order denying the
On August 30, 2005, respondent Lepanto Consolidated Mining December 27, 2005 Motion for Reconsideration and disallowed the
Company filed with the Regional Trial Court (RTC) of Makati City a twin Motions for Leave to take deposition and serve written
Complaint3 against petitioner NM Rothschild & Sons (Australia) Limited interrogatories.8
praying for a judgment declaring the loan and hedging contracts
between the parties void for being contrary to Article 20184 of the Civil On April 3, 2006, petitioner sought redress via a Petition for Certiorari9
Code of the Philippines and for damages. The Complaint was docketed with the Court of Appeals, alleging that the trial court committed
as Civil Case No. 05-782, and was raffled to Branch 150. Upon grave abuse of discretion in denying its Motion to Dismiss. The Petition
respondent’s (plaintiff’s) motion, the trial court authorized was docketed as CA-G.R. SP No. 94382.
respondent’s counsel to personally bring the summons and Complaint
to the Philippine Consulate General in Sydney, Australia for the latter On September 8, 2006, the Court of Appeals rendered the assailed
office to effect service of summons on petitioner (defendant). Decision dismissing the Petition for Certiorari. The Court of Appeals
ruled that since the denial of a Motion to Dismiss is an interlocutory
On October 20, 2005, petitioner filed a Special Appearance With order, it cannot be the subject of a Petition for Certiorari, and may
Motion to Dismiss5 praying for the dismissal of the Complaint on the only be reviewed in the ordinary course of law by an appeal from the
following grounds: (a) the court has not acquired jurisdiction over the judgment after trial. On December 12, 2006, the Court of Appeals
person of petitioner due to the defective and improper service of rendered the assailed Resolution denying the petitioner’s Motion for
summons; (b) the Complaint failed to state a cause of action and Reconsideration.
respondent does not have any against petitioner; (c) the action is
barred by estoppel; and (d) respondent did not come to court with Meanwhile, on December 28, 2006, the trial court issued an Order
clean hands. directing respondent to answer some of the questions in petitioner’s
Interrogatories to Plaintiff dated September 7, 2006.
On November 29, 2005, petitioner filed two Motions: (1) a Motion for
Leave to take the deposition of Mr. Paul Murray (Director, Risk Notwithstanding the foregoing, petitioner filed the present petition
Management of petitioner) before the Philippine Consul General; and assailing the September 8, 2006 Decision and the December 12, 2006
(2) a Motion for Leave to Serve Interrogatories on respondent. Resolution of the Court of Appeals. Arguing against the ruling of the
appellate court, petitioner insists that (a) an order denying a motion
On December 9, 2005, the trial court issued an Order6 denying the to dismiss may be the proper subject of a petition for certiorari; and
Motion to Dismiss. According to the trial court, there was a proper (b) the trial court committed grave abuse of discretion in not finding
service of summons through the Department of Foreign Affairs (DFA) that it had not validly acquired jurisdiction over petitioner and that the
on account of the fact that the defendant has neither applied for a plaintiff had no cause of action.
Respondent, on the other hand, posits that: (a) the present Petition Petitioner claims that NM Rothschild and Sons (Australia) Limited still
should be dismissed for not being filed by a real party in interest and exists as a corporation under the laws of Australia under said new
for lack of a proper verification and certificate of non-forum shopping; name. It presented before us documents evidencing the process in the
(b) the Court of Appeals correctly ruled that certiorari was not the Australian Securities & Investment Commission on the change of
proper remedy; and (c) the trial court correctly denied petitioner’s petitioner’s company name from NM Rothschild and Sons (Australia)
motion to dismiss. Limited to Investec Australia Limited.13
Our discussion of the issues raised by the parties follows: We find the submissions of petitioner on the change of its corporate
name satisfactory and resolve not to dismiss the present Petition for
Whether petitioner is a real party in interest Review on the ground of not being prosecuted under the name of the
real party in interest. While we stand by our pronouncement in Philips
Respondent argues that the present Petition should be dismissed on Export on the importance of the corporate name to the very existence
the ground that petitioner no longer existed as a corporation at the of corporations and the significance thereof in the corporation’s right
time said Petition was filed on February 1, 2007. Respondent points to sue, we shall not go so far as to dismiss a case filed by the proper
out that as of the date of the filing of the Petition, there is no such party using its former name when adequate identification is presented.
corporation that goes by the name NM Rothschild and Sons (Australia) A real party in interest is the party who stands to be benefited or
Limited. Thus, according to respondent, the present Petition was not injured by the judgment in the suit, or the party entitled to the avails
filed by a real party in interest, citing our ruling in Philips Export B.V. of the suit.14 There is no doubt in our minds that the party who filed
v. Court of Appeals,10 wherein we held: the present Petition, having presented sufficient evidence of its
identity and being represented by the same counsel as that of the
A name is peculiarly important as necessary to the very existence of a defendant in the case sought to be dismissed, is the entity that will be
corporation (American Steel Foundries vs. Robertson, 269 US 372, 70 benefited if this Court grants the dismissal prayed for.
L ed 317, 46 S Ct 160; Lauman vs. Lebanon Valley R. Co., 30 Pa 42;
First National Bank vs. Huntington Distilling Co., 40 W Va 530, 23 SE Since the main objection of respondent to the verification and
792). Its name is one of its attributes, an element of its existence, and certification against forum shopping likewise depends on the supposed
essential to its identity (6 Fletcher [Perm Ed], pp. 3-4). The general inexistence of the corporation named therein, we give no credit to said
rule as to corporations is that each corporation must have a name by objection in light of the foregoing discussion.
which it is to sue and be sued and do all legal acts. The name of a
corporation in this respect designates the corporation in the same Propriety of the Resort to a Petition for Certiorari with the
manner as the name of an individual designates the person (Cincinnati Court of Appeals
Cooperage Co. vs. Bate, 96 Ky 356, 26 SW 538; Newport Mechanics
Mfg. Co. vs. Starbird, 10 NH 123); and the right to use its corporate We have held time and again that an order denying a Motion to
name is as much a part of the corporate franchise as any other Dismiss is an interlocutory order which neither terminates nor finally
privilege granted (Federal Secur. Co. vs. Federal Secur. Corp., 129 Or disposes of a case as it leaves something to be done by the court
375, 276 P 1100, 66 ALR 934; Paulino vs. Portuguese Beneficial before the case is finally decided on the merits. The general rule,
Association, 18 RI 165, 26 A 36).11 therefore, is that the denial of a Motion to Dismiss cannot be
questioned in a special civil action for Certiorari which is a remedy
In its Memorandum12 before this Court, petitioner started to refer to designed to correct errors of jurisdiction and not errors of judgment. 15
itself as Investec Australia Limited (formerly "NM Rothschild & Sons However, we have likewise held that when the denial of the Motion to
[Australia] Limited") and captioned said Memorandum accordingly. Dismiss is tainted with grave abuse of discretion, the grant of the
extraordinary remedy of Certiorari may be justified. By "grave abuse the very merits of the main case.
of discretion" is meant:
It is basic that "[a] cause of action is the act or omission by which a
[S]uch capricious and whimsical exercise of judgment that is party violates a right of another."18 Its elements are the following: (1)
equivalent to lack of jurisdiction. The abuse of discretion must be a right existing in favor of the plaintiff, (2) a duty on the part of the
grave as where the power is exercised in an arbitrary or despotic defendant to respect the plaintiff's right, and (3) an act or omission of
manner by reason of passion or personal hostility, and must be so the defendant in violation of such right.19 We have held that to sustain
patent and gross as to amount to an evasion of positive duty or to a a Motion to Dismiss for lack of cause of action, the complaint must
virtual refusal to perform the duty enjoined by or to act all in show that the claim for relief does not exist and not only that the
contemplation of law.16 claim was defectively stated or is ambiguous, indefinite or uncertain.20
The resolution of the present Petition therefore entails an inquiry into The trial court held that the Complaint in the case at bar contains all
whether the Court of Appeals correctly ruled that the trial court did not the three elements of a cause of action, i.e., it alleges that: (1)
commit grave abuse of discretion in its denial of petitioner’s Motion to plaintiff has the right to ask for the declaration of nullity of the
Dismiss. A mere error in judgment on the part of the trial court would Hedging Contracts for being null and void and contrary to Article 2018
undeniably be inadequate for us to reverse the disposition by the of the Civil Code of the Philippines; (2) defendant has the
Court of Appeals. corresponding obligation not to enforce the Hedging Contracts because
they are in the nature of wagering or gambling agreements and
Issues more properly ventilated during the trial of the case therefore the transactions implementing those contracts are null and
void under Philippine laws; and (3) defendant ignored the advice and
As previously stated, petitioner seeks the dismissal of Civil Case No. intends to enforce the Hedging Contracts by demanding financial
05-782 on the following grounds: (a) lack of jurisdiction over the payments due therefrom.21
person of petitioner due to the defective and improper service of
summons; (b) failure of the Complaint to state a cause of action and The rule is that in a Motion to Dismiss, a defendant hypothetically
absence of a cause of action; (c) the action is barred by estoppel; and admits the truth of the material allegations of the ultimate facts
(d) respondent did not come to court with clean hands. contained in the plaintiff's complaint.22 However, this principle of
hypothetical admission admits of exceptions. Thus, in Tan v. Court of
As correctly ruled by both the trial court and the Court of Appeals, the Appeals, 23 we held:
alleged absence of a cause of action (as opposed to the failure to state
a cause of action), the alleged estoppel on the part of petitioner, and The flaw in this conclusion is that, while conveniently echoing the
the argument that respondent is in pari delicto in the execution of the general rule that averments in the complaint are deemed
challenged contracts, are not grounds in a Motion to Dismiss as hypothetically admitted upon the filing of a motion to dismiss
enumerated in Section 1, Rule 1617 of the Rules of Court. Rather, such grounded on the failure to state a cause of action, it did not take into
defenses raise evidentiary issues closely related to the validity and/or account the equally established limitations to such rule, i.e., that a
existence of respondent’s alleged cause of action and should therefore motion to dismiss does not admit the truth of mere epithets of
be threshed out during the trial. fraud; nor allegations of legal conclusions; nor an erroneous
statement of law; nor mere inferences or conclusions from facts not
As regards the allegation of failure to state a cause of action, while the stated; nor mere conclusions of law; nor allegations of fact the
same is usually available as a ground in a Motion to Dismiss, said falsity of which is subject to judicial notice; nor matters of evidence;
ground cannot be ruled upon in the present Petition without going into nor surplusage and irrelevant matter; nor scandalous matter inserted
merely to insult the opposing party; nor to legally impossible facts; faith require proof. Thus, in Parañaque Kings Enterprises, Inc. v. Court
nor to facts which appear unfounded by a record incorporated in the of Appeals,27 we ruled:
pleading, or by a document referred to; and, nor to general averments
contradicted by more specific averments. A more judicious resolution Having come to the conclusion that the complaint states a valid cause
of a motion to dismiss, therefore, necessitates that the court be not of action for breach of the right of first refusal and that the trial court
restricted to the consideration of the facts alleged in the complaint and should thus not have dismissed the complaint, we find no more need
inferences fairly deducible therefrom. Courts may consider other facts to pass upon the question of whether the complaint states a cause of
within the range of judicial notice as well as relevant laws and action for damages or whether the complaint is barred by
jurisprudence which the courts are bound to take into account, and estoppel or laches. As these matters require presentation and/or
they are also fairly entitled to examine records/documents determination of facts, they can be best resolved after trial on
duly incorporated into the complaint by the pleader himself in the merits.28 (Emphases supplied.)
ruling on the demurrer to the complaint.24 (Emphases supplied.)
On the proposition in the Motion to Dismiss that respondent has come
In the case at bar, respondent asserts in the Complaint that the to court with unclean hands, suffice it to state that the determination
Hedging Contracts are void for being contrary to Article 201825 of the of whether one acted in bad faith and whether damages may be
Civil Code. Respondent claims that under the Hedging Contracts, awarded is evidentiary in nature. Thus, we have previously held that
despite the express stipulation for deliveries of gold, the intention of "[a]s a matter of defense, it can be best passed upon after a full-
the parties was allegedly merely to compel each other to pay the blown trial on the merits."29
difference between the value of the gold at the forward price stated in
the contract and its market price at the supposed time of delivery. Jurisdiction over the person of petitioner
Whether such an agreement is void is a mere allegation of a Petitioner alleges that the RTC has not acquired jurisdiction over its
conclusion of law, which therefore cannot be hypothetically admitted. person on account of the improper service of summons. Summons
Quite properly, the relevant portions of the contracts sought to be was served on petitioner through the DFA, with respondent’s counsel
nullified, as well as a copy of the contract itself, are incorporated in personally bringing the summons and Complaint to the Philippine
the Complaint. The determination of whether or not the Complaint Consulate General in Sydney, Australia.
stated a cause of action would therefore involve an inquiry into
whether or not the assailed contracts are void under Philippine laws. In the pleadings filed by the parties before this Court, the parties
This is, precisely, the very issue to be determined in Civil Case No. 05- entered into a lengthy debate as to whether or not petitioner is doing
782. Indeed, petitioner’s defense against the charge of nullity of the business in the Philippines. However, such discussion is completely
Hedging Contracts is the purported intent of the parties that actual irrelevant in the case at bar, for two reasons. Firstly, since the
deliveries of gold be made pursuant thereto. Such a defense requires Complaint was filed on August 30, 2005, the provisions of the 1997
the presentation of evidence on the merits of the case. An issue that Rules of Civil Procedure govern the service of summons. Section 12,
"requires the contravention of the allegations of the complaint, as well Rule 14 of said rules provides:
as the full ventilation, in effect, of the main merits of the case, should
not be within the province of a mere Motion to Dismiss."26 The trial Sec. 12. Service upon foreign private juridical entity. – When the
court, therefore, correctly denied the Motion to Dismiss on this defendant is a foreign private juridical entity which has transacted
ground. business in the Philippines, service may be made on its resident
agent designated in accordance with law for that purpose, or, if there
It is also settled in jurisprudence that allegations of estoppel and bad be no such agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines. accordance with Section 6, Rule 135:
(Emphasis supplied.)
Sec. 6. Means to carry jurisdiction into effect. – When by law
This is a significant amendment of the former Section 14 of said rule jurisdiction is conferred on a court or judicial officer, all auxiliary writs,
which previously provided: processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed
Sec. 14. Service upon private foreign corporations. — If the defendant in the exercise of such jurisdiction is not specifically pointed out by law
is a foreign corporation, or a nonresident joint stock company or or by these rules, any suitable process or mode of proceeding may be
association, doing business in the Philippines, service may be adopted which appears comformable to the spirit of said law or rules.
made on its resident agent designated in accordance with law for that
purpose, or if there be no such agent, on the government official Section 15, Rule 14, however, is the specific provision dealing
designated by law to that effect, or on any of its officers or agents precisely with the service of summons on a defendant which does not
within the Philippines. (Emphasis supplied.) reside and is not found in the Philippines, while Rule 135 (which is in
Part V of the Rules of Court entitled Legal Ethics) concerns the general
The coverage of the present rule is thus broader.30 Secondly, the powers and duties of courts and judicial officers.
service of summons to petitioner through the DFA by the conveyance
of the summons to the Philippine Consulate General in Sydney, Breaking down Section 15, Rule 14, it is apparent that there are only
Australia was clearly made not through the above-quoted Section 12, four instances wherein a defendant who is a non-resident and is not
but pursuant to Section 15 of the same rule which provides: found in the country may be served with summons by extraterritorial
service, to wit: (1) when the action affects the personal status of the
Sec. 15. Extraterritorial service. – When the defendant does not reside plaintiffs; (2) when the action relates to, or the subject of which is
and is not found in the Philippines, and the action affects the personal property, within the Philippines, in which the defendant claims a lien or
status of the plaintiff or relates to, or the subject of which is property an interest, actual or contingent; (3) when the relief demanded in
within the Philippines, in which the defendant has or claims a lien or such action consists, wholly or in part, in excluding the defendant from
interest, actual or contingent, or in which the relief demanded any interest in property located in the Philippines; and (4) when the
consists, wholly or in part, in excluding the defendant from any defendant non-resident's property has been attached within the
interest therein, or the property of the defendant has been attached Philippines. In these instances, service of summons may be effected
within the Philippines, service may, by leave of court, be effected out by (a) personal service out of the country, with leave of court; (b)
of the Philippines by personal service as under section 6; or by publication, also with leave of court; or (c) any other manner the court
publication in a newspaper of general circulation in such places and for may deem sufficient.32
such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the Proceeding from this enumeration, we held in Perkin Elmer Singapore
last known address of the defendant, or in any other manner the court Pte Ltd. v. Dakila Trading Corporation33 that:
may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after Undoubtedly, extraterritorial service of summons applies only
notice, within which the defendant must answer. where the action is in rem or quasi in rem, but not if an action
is in personam.
Respondent argues31 that extraterritorial service of summons upon
foreign private juridical entities is not proscribed under the Rules of When the case instituted is an action in rem or quasi in rem, Philippine
Court, and is in fact within the authority of the trial court to adopt, in courts already have jurisdiction to hear and decide the case because,
in actions in rem and quasi in rem, jurisdiction over the person of the The Complaint in the case at bar is an action to declare the loan
defendant is not a prerequisite to confer jurisdiction on the court, and Hedging Contracts between the parties void with a prayer
provided that the court acquires jurisdiction over the res. Thus, in for damages. It is a suit in which the plaintiff seeks to be freed from
such instance, extraterritorial service of summons can be made upon its obligations to the defendant under a contract and to hold said
the defendant. The said extraterritorial service of summons is not for defendant pecuniarily liable to the plaintiff for entering into such
the purpose of vesting the court with jurisdiction, but for complying contract. It is therefore an action in personam, unless and until the
with the requirements of fair play or due process, so that the plaintiff attaches a property within the Philippines belonging to the
defendant will be informed of the pendency of the action against him defendant, in which case the action will be converted to one quasi in
and the possibility that property in the Philippines belonging to him or rem.
in which he has an interest may be subjected to a judgment in favor of
the plaintiff, and he can thereby take steps to protect his interest if he Since the action involved in the case at bar is in personam and since
is so minded. On the other hand, when the defendant or the defendant, petitioner Rothschild/Investec, does not reside and is
respondent does not reside and is not found in the Philippines, not found in the Philippines, the Philippine courts cannot try any case
and the action involved is in personam, Philippine courts against it because of the impossibility of acquiring jurisdiction over its
cannot try any case against him because of the impossibility of person unless it voluntarily appears in court.38
acquiring jurisdiction over his person unless he voluntarily
appears in court.34 (Emphases supplied.) In this regard, respondent vigorously argues that petitioner should be
held to have voluntarily appeared before the trial court when it prayed
In Domagas v. Jensen,35 we held that: for, and was actually afforded, specific reliefs from the trial court.39
Respondent points out that while petitioner’s Motion to Dismiss was
[T]he aim and object of an action determine its character. Whether a still pending, petitioner prayed for and was able to avail of modes of
proceeding is in rem, or in personam, or quasi in rem for that matter, discovery against respondent, such as written interrogatories,
is determined by its nature and purpose, and by these only. A requests for admission, deposition, and motions for production of
proceeding in personam is a proceeding to enforce personal rights and documents.40
obligations brought against the person and is based on the jurisdiction
of the person, although it may involve his right to, or the exercise of Petitioner counters that under this Court’s ruling in the leading case of
ownership of, specific property, or seek to compel him to control or La Naval Drug Corporation v. Court of Appeals,41 a party may file a
dispose of it in accordance with the mandate of the court. The purpose Motion to Dismiss on the ground of lack of jurisdiction over its person,
of a proceeding in personam is to impose, through the judgment of a and at the same time raise affirmative defenses and pray for
court, some responsibility or liability directly upon the person of the affirmative relief, without waiving its objection to the acquisition of
defendant. Of this character are suits to compel a defendant to jurisdiction over its person.42
specifically perform some act or actions to fasten a pecuniary liability
on him.36 It appears, however, that petitioner misunderstood our ruling in La
Naval. A close reading of La Naval reveals that the Court intended a
It is likewise settled that "[a]n action in personam is lodged against a distinction between the raising of affirmative defenses in an Answer
person based on personal liability; an action in rem is directed against (which would not amount to acceptance of the jurisdiction of the
the thing itself instead of the person; while an action quasi in rem court) and the prayer for affirmative reliefs (which would be
names a person as defendant, but its object is to subject that person’s considered acquiescence to the jurisdiction of the court):
interest in a property to a corresponding lien or obligation."37
In the same manner that a plaintiff may assert two or more
causes of action in a court suit, a defendant is likewise jurisdiction."43 (Emphases supplied.)
expressly allowed, under Section 2, Rule 8, of the Rules of
Court, to put up his own defenses alternatively or even In order to conform to the ruling in La Naval, which was decided by
hypothetically. Indeed, under Section 2, Rule 9, of the Rules of this Court in 1994, the former Section 23, Rule 14 44 concerning
Court, defenses and objections not pleaded either in a motion to voluntary appearance was amended to include a second sentence in
dismiss or in an answer, except for the failure to state a cause of its equivalent provision in the 1997 Rules of Civil Procedure:
action, are deemed waived. We take this to mean that a defendant
may, in fact, feel enjoined to set up, along with his objection to the SEC. 20. Voluntary appearance. – The defendant's voluntary
court's jurisdiction over his person, all other possible defenses. It thus appearance in the action shall be equivalent to service of summons.
appears that it is not the invocation of any of such defenses, but the The inclusion in a motion to dismiss of other grounds aside
failure to so raise them, that can result in waiver or estoppel. By from lack of jurisdiction over the person of the defendant shall
defenses, of course, we refer to the grounds provided for in not be deemed a voluntary appearance. (Emphasis supplied.)
Rule 16 of the Rules of Court that must be asserted in a motion
to dismiss or by way of affirmative defenses in an answer. The new second sentence, it can be observed, merely mentions other
grounds in a Motion to Dismiss aside from lack of jurisdiction over the
Mindful of the foregoing, in Signetics Corporation vs. Court of person of the defendant. This clearly refers to affirmative defenses,
Appeals and Freuhauf Electronics Phils., Inc. (225 SCRA 737, rather than affirmative reliefs.
738), we lately ruled:
Thus, while mindful of our ruling in La Naval and the new Section 20,
"This is not to say, however, that the petitioner's right to Rule 20, this Court, in several cases, ruled that seeking affirmative
question the jurisdiction of the court over its person is now to relief in a court is tantamount to voluntary appearance therein. 45
be deemed a foreclosed matter. If it is true, as Signetics claims, Thus, in Philippine Commercial International Bank v. Dy Hong Pi,46
that its only involvement in the Philippines was through a passive wherein defendants filed a "Motion for Inhibition without submitting
investment in Sigfil, which it even later disposed of, and that TEAM themselves to the jurisdiction of this Honorable Court" subsequent to
Pacific is not its agent, then it cannot really be said to be doing their filing of a "Motion to Dismiss (for Lack of Jurisdiction)," we held:
business in the Philippines. It is a defense, however, that requires the
contravention of the allegations of the complaint, as well as a full Besides, any lingering doubts on the issue of voluntary appearance
ventilation, in effect, of the main merits of the case, which should not dissipate when the respondents' motion for inhibition is considered.
thus be within the province of a mere motion to dismiss. So, also, the This motion seeks a sole relief: inhibition of Judge Napoleon Inoturan
issue posed by the petitioner as to whether a foreign corporation from further hearing the case. Evidently, by seeking affirmative
which has done business in the country, but which has ceased to do relief other than dismissal of the case, respondents manifested
business at the time of the filing of a complaint, can still be made to their voluntary submission to the court's jurisdiction. It is well-
answer for a cause of action which accrued while it was doing settled that the active participation of a party in the proceedings is
business, is another matter that would yet have to await the reception tantamount to an invocation of the court's jurisdiction and a
and admission of evidence. Since these points have seasonably willingness to abide by the resolution of the case, and will bar said
been raised by the petitioner, there should be no real cause for party from later on impugning the court's jurisdiction. 47 (Emphasis
what may understandably be its apprehension, i.e., that by its supplied.)1âwphi1
participation during the trial on the merits, it may, absent an
invocation of separate or independent reliefs of its own, be In view of the above, we therefore rule that petitioner, by seeking
considered to have voluntarily submitted itself to the court's affirmative reliefs from the trial court, is deemed to have voluntarily
submitted to the jurisdiction of said court. A party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent
and after obtaining or failing to obtain such relief, repudiate or
question that same jurisdiction.48 Consequently, the trial court cannot
be considered to have committed grave abuse of discretion amounting
to lack or excess of jurisdiction in the denial of the Motion to Dismiss
on account of failure to acquire jurisdiction over the person of the
defendant.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The

Decision of the Court of Appeals dated September 8, 2006 and its
Resolution dated December 12, 2006 in CA-G.R. SP No. 94382 are
hereby AFFIRMED.

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CIVIL PROCEDURE - Session 3

No extension of time to file the petition shall be granted except for

Contrary to the position of respondents that such amendment should

At any rate, we find no reversible error committed by the RTC in

SECTION 1. Venue of real actions. Actions affecting title to or

Since the petitioners, who were residents of Malolos, Bulacan, filed

And, in an Order dated 25 May 2000, the trial court resolved

From the above averments in the complaint, it becomes reasonably

WHEREFORE, the Petition for Review on Certiorari is DENIED. The

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